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2023 (7) TMI 1237 - CESTAT AHMEDABADRefund claim - Availment of excess credit - inputs supplied to 100% EOU by not following the formula prescribed under Rule 3(7)(a) of Cenvat Credit Rules, 2004 - allegation that appellant had not paid excise duty of Rs. 54,796/- on the removal of samples of medicines taken out for the purpose of testing/ chemical examination - whether the original adjudicating authority of the refund claim was required to issue a show cause notice before appropriation of the confirmed dues or not? HELD THAT:- It is a matter on record that amount of duty and penalty which has been confirmed by the Additional Commissioner vide his order dated 07.01.2010 has already attained finality. The appeal filed by appellant against this order has already been rejected by the Commissioner (Appeals) - there are no order of this Tribunal on the confirmed dues as per the order of Additional Commissioner dated 07.01.2010. It is a matter on record that Assistant Commissioner processed the refund claim of the appellant and thereafter the entire amount which was deposited by them amounting to Rs. 7,49,664/- has been sanctioned and as per the provisions of Section 11 of Central Excise Act, 1944, the confirmed dues amounting to Rs. 5,89,662/- has been appropriated from the refund amount due to the appellant. There are no legal short-coming in the order of the Adjudicating Authority. As there are no stay on the confirmed dues and as per the provisions of Central Excise Act, 1944, the officer sanctioning the refund is authorised to make deductions of any tax dues which are recoverable from the appellant. In the case of COMMISSIONER OF CENTRAL EXCISE, INDORE VERSUS GAHOI FOODS PVT. LTD. [2004 (11) TMI 147 - CESTAT, NEW DELHI]), the Tribunal has held that the Deputy Commissioner was justified in adjusting the amount of refund against the pending demand. The appeals are without any merit and deserve to be dismissed - appeal dismissed.
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